Court of Appeal rejects challenge to compensation award for employee death

Trial Result: The Court of Appeal has dismissed an appeal from a financial firm against an award of damages to the family of an employee of the firm who died in a helicopter crash. The court reaffirmed that the firm had breached the duty of care it owed its employee as regards the safety of the flight, and this had caused his death.

Analysis

The deceased employee, investment banker Tomas Dusek, was one of a dozen executives killed when a chartered helicopter got into difficulties at 16,000ft and crashed into a mountain in Peru in June 2012. The flight was to observe progress on a billion dollar hydro-power project.
His family sued his London-based employer, StormHarbour Securities LLP, saying it had failed in its duty to ensure the flight was safe.

In 2015 a judge ruled that StormHarbour was fully liable for Mr Dusek’s death in the ‘high risk’ flight over the Andes. He ruled that the accident was caused by the crew’s ‘disregard or lack of knowledge’ of the helicopter’s limitations and the difficult terrain, and that, although the flight was clearly dangerous in deteriorating weather conditions, the crew ‘failed to withstand client pressure’ to take off.

On 24 June 2016 at the Court of Appeal, StormHarbour’s lawyers argued the judge’s decision flew in the face of reason as Mr Dusek was a ‘high level employee with great autonomy’, who was not averse to taking risks, and was able to decide for himself whether to get on the flight.

StormHarbour argued it was ‘wholly unrealistic’, from its base in London, to carry out a risk assessment of events on the other side of the world.

However, Justice Baker ruled StormHarbour’s appeal ‘hopeless’. He said the flight across the mountains was ‘inherently dangerous’, and that however independent-minded he may have been, Mr Dusek would have obeyed an instruction from StormHarbour not to get on board.

He said the firm ‘knew or ought to have known’ of the risks involved, but ‘no inquiry was carried out at all’. StormHarbour had breached the duty of care it owed Mr Dusek as his employer and this had caused his death, he concluded.

The amount of compensation has yet to be assessed, but is expected to be a seven-figure sum.

LNB News 24/06/2016 82 and Lexis Nexis